George A. Feuston was arrested in Jay County and charged with theft. While out on bond, Feuston failed to appear for his pretrial conference, and he was later arrested in Delaware County on an unrelated charge. After he was incarcerated in Delaware County, no further action was taken in the Jay County case until Feuston, acting pro se, filed a “Motion Requesting Final Disposition of Charges/Detainers.” Appellant’s App. at 20. Thereafter, Feuston was appointed counsel, who filed a motion for discharge pursuant to Indiana Criminal Rule 4(C). The trial court denied the motion and certified its order for interlocutory appeal. We accepted jurisdiction, and oral argument was held on June 27, 2011, in Indianapolis. Concluding that Feuston caused the delay in the Jay County case by absconding and failing to appear at his pretrial conference, we affirm.
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Feuston was released on bond in Jay County and then was arrested in Delaware County. We faced a similar factual scenario in Rust v. State, 792 N.E.2d 616 (Ind. Ct. App. 2003).2 Rust was arrested and charged in Hancock County in February 2001. After bonding out, Rust was arrested and charged in Marion County in March 2001. He bonded out again and appeared at his initial hearing in Marion County, but then failed to appear for subsequent hearings in both counties, and each county issued a warrant for his arrest. In October 2001, Rust surrendered in Hancock County and filed a “Notice of Surrender” in Marion County while he was being held at the Hancock County Jail. Id. at 617. Rust pled guilty to the Hancock County charges and was sentenced in August 2002. After he served that sentence, he was brought to Marion County.
In October 2002, Rust moved to dismiss the Marion County charges pursuant to Criminal Rule 4(C). The trial court denied the motion, and Rust appealed. Rust conceded that the clock was tolled from the time that he failed to appear at his hearings until he surrendered himself. The parties disputed whether the filing of Rust’s Notice of Surrender restarted the clock. We concluded that “once the trial court and the State were notified via the Notice of Surrender where Rust was incarcerated, the State was obligated to proceed with the case in a timely manner,” and the State “could not simply wait until the Hancock County sentence was satisfied before moving forward with the Marion County charges.” Id. at 620. Therefore, we reversed the denial of his motion for discharge. Id.
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The State argues that Feuston’s case fits squarely within Werner and urges us to affirm the trial court. Feuston, however, argues that notice of the defendant’s whereabouts is irrelevant because the court can set a trial date regardless of whether the defendant is present. In support, he cites Schwartz v. State, 708 N.E.2d 34 (Ind. Ct. App. 1999).
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Feuston argues that because the State has an affirmative duty to bring him to trial in a timely manner and because a trial date can be set regardless of whether he appeared for his pre-trial conference, we should follow Schwartz. However, we agree with the State that Schwartz stands for the proposition that when the record is silent as to the reason for a delay, it will not be charged to the defendant, and our statements about setting a trial in the defendant’s absence are merely dicta. Feuston conceded at oral argument that the trial court has no duty to set a trial date in the defendant’s absence. Nor are we inclined to create such a duty; requiring trial courts to fill their calendars with “place holder” trial dates for defendants who have failed to appear or whose whereabouts are unknown would surely complicate scheduling matters in trial courts as a whole, especially because criminal trials are given first priority. Furthermore, we agree with the State that “[w]hen a defendant fails to appear for a hearing and his whereabouts are unknown, it makes little sense to set a trial date … unless it is to become the norm to try defendants in absentia even though it is certain that the defendant has not been informed of a trial date.” Appellee’s Br. at 9.
Feuston also conceded that the trial court and prosecutor did not have actual or written notice of his whereabouts until he filed his motion on August 17, 2010. [Footnote omitted.] Although Feuston alleged that the warrant was read to him soon after he was arrested in Delaware County, he did not present any evidence in support of that allegation, and the court’s records show that the warrant was not served and returned until August 17, 2010. Feuston’s records from the Delaware County Jail indicate that he was checked out to attend court in Jay County on August 19, 2009, but the CCS from the Jay County case has no entry on or around August 19, 2009. Thus, there was a factual issue for the trial court to resolve, and the trial court apparently concluded that Feuston did not appear in court in Jay County on this case in August 2009.
The fax communications that Feuston attached to his motion seemingly indicate that the Jay County Jail was aware that he was incarcerated in Delaware County in August 2009. [Footnote omitted.] Even if that is true, we conclude that the knowledge of a police or correctional officer should not be imputed to the trial court or prosecutor in these circumstances. The purpose of Criminal Rule 4(C) is to promote early trials and not to discharge defendants. Caldwell v. State, 922 N.E.2d 1286, 1288 (Ind. Ct. App. 2010), trans. denied. Unnecessary delays will not be deterred by granting discharges in cases where the trial court and prosecutor did not have actual knowledge of the defendant’s whereabouts. This is true regardless of whether some other agent of the State has this knowledge. [Footnote omitted.]
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Furthermore, we note that Feuston does not have clean hands; the trial court and prosecutor lost track of his whereabouts in the first place because he absconded and failed to appear for his pre-trial conference. [Footnote omitted.] When a defendant absconds, the ensuing delay is caused by his act; therefore, we conclude that the Criminal Rule 4(C) clock does not resume until the trial court and prosecutor have actual knowledge of his whereabouts. To hold otherwise would reward a defendant who absconds in the hope that the court and prosecutor will lose track of his case. Feuston presented no evidence that the trial court and prosecutor knew where he was before he filed his motion on August 17, 2010; therefore, we conclude that he has not demonstrated that he is entitled to a discharge.
ROBB, C.J., concurs in result with separate opinion:
Although I agree with the majority that the trial court did not err in denying Feuston’s motion for discharge pursuant to Criminal Rule 4(C), I respectfully concur only in the result because I believe the majority’s holding is too broad given the fact-sensitive nature of Rule 4(C) inquiries.
The majority concludes that the trial court or prosecutor must have actual notice of the defendant’s whereabouts, slip op. at 10, and even if some other agent of the State – including the agent charged with finding him and bringing him before the trial court pursuant to a bench warrant if he fails to appear in court as ordered – has actual knowledge of the defendant’s whereabouts, that knowledge should not be imputed to the trial court or prosecutor if they do not have actual knowledge themselves, id. at 11. I would not say this is true in every instance. . . . I believe the issue of notice is extremely fact sensitive, see 818 N.E.2d at 32, and if there was indisputable evidence that officials at the Jay County Jail were aware Feuston was incarcerated in the Delaware County Jail during the pendency of his Jay County case and further, indisputable evidence of when they became aware of Feuston’s incarceration, I would hold that the trial court and the prosecutor were sufficiently notified of Feuston’s whereabouts to begin the Rule 4(C) clock running as of that date.